Alerts and Updates

Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic

March 18, 2020

The Office for Civil Right’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures resulting in potentially discriminatory effects to students.

Recognizing this risk, the Department of Education’s Office for Civil Rights published guidance on March 16, 2020, reminding schools that students’ civil rights must be safeguarded during responses to the COVID-19 pandemic. OCR’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

Words of Caution

The Department of Education focused on a few key areas as examples of potential pitfalls:

Respond to Allegations of Bullying and/or Harassment

Schools are reminded to continue to investigate and respond appropriately to allegations of bullying and/or harassment. If an investigation reveals such acts occurred, schools need to take prompt and effective steps reasonably calculated to end the bullying or harassment.

Denial of Access on Basis of Race, Color or National Origin

Schools are reminded to not assume or otherwise identify students of a certain race, color or national origin as being more likely to be carrying and/or impacted by COVID-19. Rather, such identification or inquiries should be based on generally applicable inquiries and/or nondiscriminatory factors, such as recent travel history information requested of the entire student body.

Accommodation of Disabilities in K-12 Education

Schools are reminded that a student with a disability who is advised to stay home due to COVID-19 must still be afforded a free appropriate public education (if the school is still open and serving other students). Schools should utilize the student’s IEP team to make an individualized assessment of the resources, methods and extent of compensatory services to be provided. Accessible technologies should be utilized where appropriate, as they are often valuable resources for distance education.

Note that schools that are closed to all students do not need to provide services to students with disabilities during the same time period. But schools must return to providing such services when they reopen to the general student population.

Accommodation of Disabilities in Post-Secondary Education

Schools are reminded to consult with public health offices in creating strategies for dealing with COVID-19 in the community. However, such strategies must accord nondiscrimination laws, such as Section 504 of the Rehabilitation Act, the Americans with Disabilities Act and similar state and local laws.

Additional Areas to Monitor

Beyond those areas highlighted by OCR, schools should be cognizant of other emerging unintended consequences from COVID-19 precautions.

Website Accessibility Problems

Many schools are moving to fully online courses to minimize social contact. Schools doing so should be aware of the accessibility of these online courses to students with hearing or visual impairments. Tools such as closed captioning, audio readers for text, easily navigable websites, etc., will help increase accessibility. Also, permitting students to access recordings of the lectures may assist students who typically utilize notetakers or other assistive devices during lectures.

Access to Disability Services

School facility closures and limits on social interactions may lead students to believe disability accommodation services are also closed. Schools should remind students of the process for requesting accommodations during this time.

Access to Mental Health Services

Many students may be dealing with mental health issues, such as anxiety about the pandemic, fear for family members, stress from isolation/solitude, etc. Schools should remind students of any mental health services being offered by the campus and how to access those services (e.g., via teleconference or videoconference). Schools may consider also informing students of similar mental health services in the local community.

As OCR summarized it:

schools have significant latitude and authority to make necessary actions to protect the health, safety, and welfare of students and school staff [but, in doing so] they should be mindful of the requirements [of civil rights laws] to ensure that all students are able to study and learn in an environment that is safe and free from discrimination.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help institutions plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact any of the attorneys in the Higher Education Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.